Friday Florida Law Update- Read the Fine Print!

Posted October 14, 2011 by Craig Salner
Categories: Florida Law Updates

TGIF all, and welcome back to the Friday Florida Law Updates portion of the blog!  I’m not gonna lie, about 80% of the fun in this blog is finding a good photo.  Today, we have a case about a poor judgment debtor having his wages garnished.  I punch “garnishment” into the Google image search, and voila!  Look at that beauty above!

Today we look at USAmeribank v. Klepal, 2011 WL 4809107 (Fla. 2d DCA Oct. 12, 2011).  In Klepal, an individual obtained a $43,000 bank loan apparently unsecured by any property.  The promissory note, among what I am sure was about 50 other provisions, included a statement that the borrower consents to the issuance of a continuing writ of garnishment or attachment against my disposable earnings . . . in order to satisfy, in whole or in part, any money judgment entered in favor of the Bank.” 

A writ of garnishment is a tool by which a creditor can obtain a court order requiring a party owing money to the debtor, such as a bank where the debtor holds money or, in this case, the debtor’s employer, to furnish the funds directly to the creditor. 

Sure enough, this $43,000 loan resulted in a $51,000 judgment for the bank after Klepal defaulted.  In its attempt to collect on the judgment, the bank attempted to have a continuing writ of garnishment issued on Klepal’s employer.  At the trial court level, Klepal had the writ dissolved due to the head of family exception to Florida’s garnishment statute, which protects a head of family’s wages from garnishment.  (Florida is a renowned debtor-friendly state). 

On appeal, the Second DCA held that the provision of the note agreeing to a continuing writ of garnishment on Klepal’s disposable earnings constituted a valid and conspicuous waiver of the “head of household” exemption.

The moral, as always, is to READ THE FINE PRINT when signing any significant contract!  

 

Belated Thursday Poker Blog! The Streak Continues…

Posted October 7, 2011 by Craig Salner
Categories: Poker Tips and Tales

Good morning everyone!  We will have two posts for you today, including this late Thursday poker blog update!

Last week, we chronicled the ridiculous run of fortune (and some good play too ;-D) that has produced about $1300 in profit in a low-stakes home game in just over two months.  Our normal Wednesday game was shifted to Thursday last night and yes, the streak continued!

We had only seven players this week, meaning only 2 would make the money.  After a steady but under-the-radar effort in Game 1, I missed the money after getting crippled in an AQ v. A9 pre-flop all-in hand where a dirty 9 spiked the river to steal away all my winnings.  If the hand held up,  I would have had the 2nd largest stack and with 3 players left, a heavy favorite to at least make the money.  All you can do is get your money in at the right moment and hope the math works in your favor.  Not meant to be that time…

Game 2 featured a similar start, as I slowly chipped my stack up above average with some small pots early.  The key moment for me came on a large semi-bluff.  With the blinds still reasonably small (75/150 I believe), I decided to limp into a multi-way pot with 3-4 of hearts, some classic suited connectors as depicted above.  Now, most pros will say that 3-4 suited is too low when it comes to playing suited connectors.  I tend to disagree not just because a 4 high flush is just as valuable as a 7 high flush in my book, but also my table image really helps disguise my hand when something goofy like a flop of A-4-4 happens. 

To me the only mandate with baby suited connectors is having the discipline to disregard making one pair, realizing that you’re not playing the hand to make a pair of 4’s. 

So anyway, in a pot of about 4 players, the flop comes Q-6-2 with 2 hearts.  I have 12 cards that will either make a flush or straight for me (9 hearts and 3 non-heart 5’s).  My friend in the big blind bets out about 300, I raise, not call, to 800.  As we discussed early in the blog, the raise is a more effective play here for several reasons.  One, we’re disguising that we are on a draw, and are more likely to get paid off when we hit our hand than if we just call until the 3rd heart comes.  Second, why not try to win the pot here?  Betting is the too-often-forgotten second way of winning a pot aside from having the best cards. 

My friend does go ahead and call my raise.  The turn brings another 2, and not the heart I need.  My friend bets out AGAIN, this time approximately 800 chips.  This is an unorthodox move, somewhat thwarting yet a 3rd usual benefit of semi-bluffing in position, the free river card.  Normally when you raise in position on the flop, your calling opponent will check to you on the turn, giving you the option of checking the turn if you indeed miss your draw. 

My friend has denied me that opportunity by betting out.   At this point, I have about 2500 chips.  I can fold, declining to exhaust my entire stack on 3-4.  I still have the odds to call, but I hate dwindling my stack down to 1700 if my draw doesn’t hit.  Or, option 3, I raise him again ALL IN!   After a few moments, he shows a Queen (top pair) and mucks his hand. 

In poker, you can’t live unless you’re willing to die sometimes 🙂   

The cards were pretty friendly to me after that, and a sweet victory came about 40 minutes later!

We will be back with a Florida Law Update later today…

Wednesday Federal Employment Law Update- Hostile Work Environment

Posted October 5, 2011 by Craig Salner
Categories: Federal Employment Law Updates

Hope everyone had a great day today.  Why does today’s post start with a photo from the 1996 movie, Primal Fear?  Well, below we will talk about a case involving a claim of a sexually hostile work environment against a Roman Catholic diocese.  Anytime I think of a sex scandal against the catholic church, I am instantly reminded of this underrated movie.   Want to talk about star power?  It starred Richard Gere before he started focusing on musicals, breakout performances by Edward Norton and Laura Linney, and a great ensemble cast of character actors — John Mahoney (from the TV hit Frasier), Maura Tierney (before her run at ER and a classic Elizabeth Perkins Hall of Famer, my name for actresses which I am not sure whether we are even SUPPOSED to think are beautiful), Andre Braugher (fromHomicide:  Life on the Street), and Alfre Woodard.

My only issues with the movie?  One, the title.  I don’t really get it.  And two, the murder victim in the movie is a famous Roman Catholic clergyman named Archbishop Rushman.  I’m sorry to throw generalizations out in an employment law blog, but without literally pointing out the problem here, it seems like “Archbishop Flaherty” or “Archbishop Lorenzo” may have been a slicker fit.  Yet I digress…

In Rojas v. Roman Catholic Diocese of Rochester, 2011 WL 4552460 (2d Cir. Oct. 4, 2011), the Second Circuit affirmed summary judgment on the Plaintiff’s claims of sexual harassment, hostile work environment, and retaliation against her former employer based on alleged harassment by a fellow employee.  Plaintiff sued the fellow employee as well, a priest, but did not appeal the summary judgment issued to him by the lower court.

The key issue in the case was the rampant inconsistencies in Plaintiff’s story between her complaint, her deposition testimony, and her sworn interrogatory responses.  In sum, there were key inconsistencies on the issues of 1) whether the priest was her supervisor (key for imputing liability to the employer); 2) the severity of the conduct; and 3) when and how she reported the conduct.  The inconsistencies were so egregious that the lower court held, and the 2nd Circuit agreed, that no genuine issue of material fact could be raised to defeat summary judgment.  Specifically, the Court held that, “in certain cases a party’s inconsistent and contradictory statements transcend credibility concerns and go to the heart of whether the party has raised genuine issues of material fact to be decided by a jury.  This is such a case.”

Tuesday Pop Review- The NFL Red Zone Channel

Posted October 4, 2011 by Craig Salner
Categories: Pop Reviews

Welcome all to your Tuesday Pop Review!  So you have probably noticed over our first several months that I am a pretty big sports fan.  The enthusiasm that you saw as we broke down sporting events like NCAA’s March Madness and the NBA Finals pales in comparison for my Fall football craze.  From September through December, my dream weekends include literally nothing other than watching football.  For the NFL, I am in three fantasy leagues, I do those fun “Survivor” pools and yes, I have an occasional wager on an occasional game.  I also have been a fairly devoted Miami Dolphins fan for the past 20 years.  (No need to send sympathy cards, but thank you). 

Over the last 10 years or so, football has become increasingly difficult to watch on television.  Sure, I love the HD era, but my real problems are the excessive commercial breaks.  In an era where television rights contracts cost networks multiple billions of dollars, networks have pounded us with excessive commercial breaks at an insulting rate.  Breaks used to be relatively manageable.  Typically, the game would go to commercial after most possessions (either scores or punts), at the end of quarters, the two-minute warning at the end of the half, and some timeouts except those that occurred at critical stages where the analysts would actually analyze something important.  Networks would also be reasonable with us and not do things like go to commercial after a punt with 40 seconds left in a quarter, knowing that we would be going to break after the next 1 or 2 plays.     

The only typical exception of this pattern was Monday Night Football, where ABC used to sneak in about 1 additional break per half after kickoffs.  As in, Team A scores, kicks the extra point, commercial, back from break, kickoff to Team B, commercial again.  We accepted this for a variety of reasons, including that we were probably 3 beers in. 

Now, with billions in advertising revenue needed to make up for the absurd contract prices, the old exception has become the norm.  Every single pause in the action is greeted with 2 minutes of commercials, including about 50% of all kickoffs, any coach’s challenge, any injury, and about 95% of all punts.  FOX is more than happy to take you to commercial after a kickoff with 30 seconds left in a quarter.  ESPN treats us to the “GMC Monday Night Launch,” which gives is really just code for “We’re gonna get 2 commercial breaks in before we even shove Hank Williams, Jr. down your throats,” and NBC loves giving us a 1992 Tom Petty jingle on the way to break at the first sight of a coach’s challenge flag. 

The result?  Watching a single game on television is one of the most disconnected feelings a sports fan can have.  If you get 5 consecutive plays in without a break, it’s a bonus.  You also couldn’t pay me to go to an NFL game live.  The idea of being squished into a seat in 95 degree heat while nothing is happening 70% of the time except drunk obnoxious fans trying to coach from the 400 sections?  No thanks.   

The only savior left is the NFL Red Zone Channel.  About 4 years old, Red Zone is on from 1 pm on Sunday until the final 4:15 game ends, with zero commercial breaks and a host (the witty and knowledgeable Scott Hanson) taking viewers to each game live at all key moments.  For fantasy football players and folks who are more football enthusiasts than diehards of a single team, Red Zone is the only way to go and the only reason why the NFL is still watchable.  With most cable packages, the Red Zone is a $5/month add-on and comes with a bunch of other decent sports stations (i.e. Big Ten Network, Fox Sports [insert region here]).  If you’re as jaded as I am about watching the NFL and don’t have the Red Zone, I highly recommend it! 

Monday Practice Tips for Young Attorneys- Don’t Qualify the Opposing Expert!

Posted October 3, 2011 by Craig Salner
Categories: Practice Tips for Young Attorneys

Hope everyone had a better weekend than this Florida Gator fan!  Today, we circle back to our series on deposition preparation.  When we last spoke on this issue, we were starting to dole out some tips for deposing experts.  Today we focus on another associated tip:  Never qualify opposing experts in your deposition!

In advance of the deposition, you will undoubtedly receive a copy of the expert’s curriculum vitae, setting forth their storied academic and professional history, the three dozen articles they have had published, their various academic appointments, etc.  For some reason, it’s a natural urge to draw up a series of introduction questions about the expert’s qualifications.  Almost like an early throat-clearing part of your outline when you are afraid to start digging into the heart of the area of expertise.  Having the expert “qualify himself” during your examination is a big mistake for several practical reasons:

1) While you are accomplishing absolutely nothing that helps your case, you’re chewing up 15-20 minutes of valuable time.  As a reminder, your client has to pay for the expert’s deposition time, which will often be in the range of $500/hr.  You often will come to the deposition with a check for just an hour or maybe two.  You don’t want to be rushed during the important parts because you let the expert talk about their grades in college for 20 minutes at the beginning.

2)  More importantly, you never know when an expert will be unavailable to attend trial.  Most young lawyers are used to having relatively open calendars.  Grizzled experts are exactly the opposite.  They clear deposition times, vacation, speaking engagements, and everything else months in advance.  When the date of trial starts skipping around as they invariably do, trial experts often will be unavailable to attend (particularly ones that are not local).  By letting the witness give us qualifications in deposition, you just permitted your opponent to have his deposition read into the record at trial, if the witness is indeed unavailable.  If you don’t qualify the witness, your opponent neglects to do so on cross-examination, and the expert does not attend trial, he is lost to your opponent (unless his testimony is somehow otherwised preserved on the eve of trial).

We will be back with a Pop Review tomorrow!  

Friday Florida Law Update- Seaworthy Despite Negligent Medical Staff?

Posted September 30, 2011 by Craig Salner
Categories: Florida Law Updates

Hello all, TGIF, and welcome back for your Friday Florida Law Update! Today we look at a tragic incident that occurred aboard a Royal Caribbean cruise ship. In Fleuras v. Royal Caribbean Cruises, Ltd., 2011 WL 4467347 (Fla. 3d DCA Sept. 28, 2011), a deceased woman’s estate brought a claim against the cruise line, alleging that one of its ships was “unseaworthy” due to the negligence of its medical staff.

The sad facts of the case were that a ship photographer, Diana Fleuras, complained to medical personnel multiple times over the course of several days relating to abdominal and back pain.  In the course of treatment, she was diagnosed as pregnant, and days later underwent an abortion procedure from a physician in the Virgin Islands.  Upon her return to the ship after the abortion, she continued to complain of abdominal pains and repeatedly sought medical attention.  She was prescribed multiple medications by the ship’s medical staff.  One evening, while the ship was in port, Fleuras required emergency assistance.  An ambulance was summoned to the port, and Fleuras was transported to a hospital, where she subsequently passed away from complications due to her pregnancy — specifically, that she had an ectopic pregnancy (one where the embryo implants outside the uterine cavity).

Her estate sued Royal Caribbean, complaining that the ship was rendered unseaworthy by its negligent medical staff.  Specifically, Plaintiff alleged that the ship’s staff failed to adequately detect Fleuras’ ectopic pregnancy, failed to adequately document her symptoms, failed to provide sufficient history to the paramedics, failed to establish proper medical procedures or, alternatively, failed to follow them.

At the trial court level, the court granted summary judgment to Royal Caribbean on two grounds — 1) a single act of negligence by the medical staff was insufficient to deem a vessel as “unseaworthy,” and 2) a shipowner has no duty to establish procedures to govern medical emergencies.

On appeal, the Third District Court of Appeal affirmed in part and reversed in part.  Essentially, the Third DCA agreed with the two points above.  However, the appellate court ruled that summary judgment was premature for two reasons.  First, Plaintiff was entitled to further discovery to determine whether the medical staff was incompetent generally (which would qualify a vessel as unseaworthy) or just had a single act of negligence (which does not render a vessel unseaworthy).  Second, Plaintiff was entitled to further discovery as to whether the ship had indeed promulgated emergency procedures because, while an owner has no duty to promulgate such procedures, if indeed they do enact procedures, they must be followed.  This is also known as the “undertaker doctrine.”  You may not have a duty to do something, but if you undertake the duty, you must carry it out in a non-negligent manner.

Despite some of the draconian features of this ruling, keep in mind that this also has a lot more to do with Royal Caribbean’s deep pockets.  Plaintiff is also of course free to pursue the physician directly for redress.

Have a great weekend!!

Thursday Poker Blog! “August and Everything After”

Posted September 29, 2011 by Craig Salner
Categories: Poker Tips and Tales

Welcome back to everyone’s favorite part of this blog — Poker Thursday!  Today’s title and photo has multiple meanings.  The album cover to the Counting Crows’ first album, “August and Everything After,” signifies a) an homage to my many Jewish friends celebrating their new year today (The CC’s singer Adam Duritz is a fellow enlightened one!); and b) signifies the rarified dominant air I have enjoyed in my poker home game since the beginning of August!

Interestingly, my good friend and biggest rival (another attorney btw, check him out at  http://www.shermanlawpa.com) had similar runs in previous years where he let the field linger for the first half of the season and then, when August came around, Boom!  He was out of sight ahead of the field (and yes, btw, we know this because we keep detailed standings!). 

So, let’s review the bidding.  Our home game typically gets between 7-9 players a week, with occasional bigger games going up to 14-16 on rare occasions.  Our buy-in is $30 per game and we play two games per meeting.  On occasion, we will play one large game for $60 instead of 2.  We typically pay out 2-3 players per game depending on the number of players (in other words, it’s not “winner-take-all”).

So, since and including July 27th, my group has played 18 games.  I have made the money in 14 of them, winning or chopping in 11 of those (“chops” are when the remaining players agree to some equitable split of the prize money instead of playing the tournament out to the end).  It’s been probably the hottest string of poker in my life (over $1,300 in winnings in a low-stakes game).

The reasons?  Of course, luck has to work in your favor.  Your good hands have to consistently hold up, you must win the key races, and yes, I have had the fortune of overcoming the odds in multiple circumstances.

However, you cannot have a run like that without making some really good decisions.  For me, I would have to say that recent renewed interest in NBC’s “Poker After Dark” has been a big help.  The show is not perfect by any means, but watching top pros operate has really reinforced the basics:

1) Position is huge.  Don’t draw from out of position, don’t be afraid to see a flop with modest holdings when you have position. 

2) Having the best hand is great, but never count out the second way of winning a pot — betting

3)  Pot odds.  If there’s a raise with several callers and you’re in the big blind with a fatty cut of meat (a weak hand), don’t be afraid to see a flop

4) Don’t be afraid to call all-ins with middling hands when you know you’re opponent is in a position to shove with any two cards.

We can spend years going over neat little poker moves every Thursday, but never forget the basics. …